By Linda C. Ashar, J.D.
Faculty Member, School of Business, American Public University
Conflicting information and a wild array of opinions might well both leave employers and employees adrift in a sea of questions about how to confront COVID-19 in their workplace. Are there any rules about how to safely return back to a physical workplace?
And if so, whose rules are they? The Occupational Safety and Health Administration (OSHA) is a good place to start.
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OSHA Guidance for Returning to Work
Every employer is subject to workplace safety regulations and guidelines of the federal Occupational Safety and Health Administration (OSHA). There also are 22 OSHA-approved state plans governing workplace safety.
OSHA’s guidance for COVID-19 back to work defines three return-to-work categories from the initial stay-in-place shutdowns to cope with the virus.
- Phase 1 – Businesses focus on telework and limit the number of onsite employees. Special accommodations can be made for workers with special needs, including those with high-risk family members.
- Phase 2 – Businesses continue telework, but nonessential travel resumes.
- Phase 3 – Businesses resume unrestricted staffing at work sites.
Although most businesses have moved past Phase 1 measures, the recent resurgence of pandemic hotspots around the country suggests that some workplaces might again scale back their in-house staff. Employers may elect to take this measure voluntarily through an abundance of caution or under a state or local mandate.
In all three phases, OSHA cautions employers to conduct a full COVID-19 workplace assessment and impose measurable actions to manage risk in their ongoing operations. This means preparing a plan and policies to ensure that employees will feel safe as they return to work in an on-site environment.
OSHA Recommendations for Conducting a Workplace Assessment
OSHA lists these specific steps for organizing the workplace for dealing with COVID-19 risks:
- Hazard assessment: Determine the exposure risks of COVID-19 for each job or job classification, whether exposure is for employees interacting with members of the public or with coworkers. OSHA cautions employers to “systematically remove” hazards, rather than leaving it to employees to avoid risk.
- Hygiene: Provide hand-washing stations and instructions for using them to employees, visitors, and the public. Also, provide hand sanitizers and conduct frequent sanitizing of common surfaces.
- Social distancing: Mark six-foot demarcations for work stations, aisles, and any other locations that are commonly used by employees and visitors.
- Identification/isolation of sick employees: Instruct employees to self-identify daily and stay home if they are sick. If an employee’s illness is identified at work, have a designated place for isolation until the employee can leave and disinfect all contact spaces where the employee has been. The self-identification of COVID-19 symptoms is available through CDC online resources and should also be provided to employees directly to ensure full understanding.
- Employees returning to work after illness or exposure: Follow CDC guidelines for discontinuing a quarantine.
- Controls: Determine the appropriate personal protective equipment (PPE) to be used in the workplace based on assessment of employee needs. The focus here is on the determination of necessary controls and implementing them. General masks are not considered PPE, but they should be used where employees have exposure to each other or the public. The public should also wear masks, as recommended by CDC guidelines.
- Workplace flexibilities: OSHA recommends considering the continuation of telework and other job modifications. This practice will reduce worker-to-worker proximity and unnecessary worker contact with the public, which in turn will reduce the risk of employee exposure to COVID-19.
- Training: Employees should be trained about COVID-19 exposure and minimizing their risk. They should also undergo training to understand their employer’s COVID-19 policy and take safety measures.
- Anti-retaliation: OSHA prohibits retaliation against employees for asking questions about workplace safety or raising concerns about COVID-19. Similarly, supervisors must be fully trained about safety policies, COVID-19 risks and workplace flexibility options. Employees have the right to refuse hazardous work. The refusal must be reasonably based, but the employee can question without fear of retaliation.
The emphasis throughout OSHA’s guidance is on flexibility and responsiveness to employees’ individual situations. Return to work in the COVID-19 environment is not a return to “former normal.”
Following State Department of Health and Local Health Department COVID-19 Guidelines
While OSHA guidelines are useful for preparing a plan of operation to address operations, each state has guidelines that must be followed for businesses reopening for employees returning to work, especially relating to those businesses that are classified as nonessential. Many of these guidelines are quite detailed and carry penalties:
- As a Castle Rock, Colorado, restaurant learned in May, noncompliant businesses risk being closed by the state or local authorities for violating COVID-19 orders. The restaurant had opened to a dine-in crowd on Mother’s Day, against a state order permitting only curbside take-out service. As a result, authorities suspended the restaurant’s license.
- Connecticut expressly states that, following initial warning, a business can be closed for violating state orders, and details very specific guidelines for operations.
- Ohio is another example of state and local aggressive employer COVID-19 directives.
- Florida, on the other hand, is much less specific, referring employers instead to OSHA guidelines and the CDC.
On the Kaiser Family Foundation (KFF) website, there is a helpful state-by-state listing of coronavirus reopening plans. Employers and employees should consult their state government websites directly for complete information and updated directives.
The Bottom Line
In working through the COVID-19 guidelines, orders, warnings and recommendations, some themes emerge. A responsible and practical business will:
- Be creative. Assess the workplace from an “outside the box” perspective. Rather than eliminate or assume jobs cannot be done because of changes, explore how they can be done differently. Both OSHA and state guidelines emphasizes telework options, for example.
In addition, look at ways to reconfigure onsite work that not only reduce employee exposure to coronavirus, but streamline tasks. Engage employees in the refitting of what they do.
In a unionized workplace, involve the union in finding solutions. The goal should be to reasonably minimize risk and stress. This also means understanding that, statistically, some employees are at higher risk for contracting COVID-19, and that risk may have increased their demands at home.
- Follow, not fight, OSHA, state and local guidelines. Create clear policies that work for the unique dynamics of the workplace, communicate them to employees and enforce them. The alternative is uncertainty, inconsistency, confusion, health risks and legal issues, all of which will cause more expense on a business already burdened by the costs of a pandemic. COVID-19-based lawsuits, such as a pending class action lawsuit against Celebrity Cruises, have already been filed by employees alleging employer failure to provide workplace protections.
- Keep a record of the workplace COVID-19 plan that tracks the OSHA and state guidelines. This record will assist a business with both compliance with best practices and will provide evidence of consistency in following health guidelines.
A good method of recordkeeping is to set up a journal or file organized by OSHA’s nine action measures and record what has been done for each item. Add in specifics for any additional state requirements.
For example, keep time-stamped photos of posted policies, posters, and hand-washing stations, and have employees sign in for training and file their signature records. Keep a confidential COVID-19 incident log of employees reporting feelings of illness, being sent home, self-quarantining and returning to work. This recordkeeping process will also provide an ongoing means of evaluating where changes are needed.
- Maintain open, inclusive and positive communications with employees. Mutual understanding goes a long way toward preventing safety problems before they happen.
- Be flexible. Flexibility will allow an organization to respond to problems as needed and maintain reasonably safe operations in a quickly changing environment.
Employers and workers alike must recognize that everyone in today’s society is facing changes, and those changes will continue in the workplace for the foreseeable future. On April 30, 2020, Secretary of Labor Eugene Scalia wrote that that COVID-19 is a “hazard in the workplace. But it is not unique to the workplace…… [and] presents grave and shifting challenges that require sustained attention; we evaluate daily what additional steps we can and should take.”
Risk cannot be eliminated, but it can be reasonably assessed and minimized by following the guidelines from the workplace and disease experts at OSHA, the CDC, and state and local health departments. The result will be fewer COVID-19 cases, fewer lawsuits and a peaceful, safer work environment for everyone.
About the Author
Linda C. Ashar is a full-time Associate Professor in the School of Business, American Public University, teaching undergraduate and graduate courses in business, law, and ethics. She obtained her Juris Doctor from the University of Akron School of Law. Her law practice spans more than 30 years and includes employment law and litigation on behalf of employers and employees.
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